44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO NURSING MOTHERS; PROVIDING PROTECTION FOR NURSING MOTHERS IN THE WORK PLACE; PRECLUDING NURSING MOTHERS FROM JURY DUTY; PROVIDING AN INCOME TAX CREDIT FOR EMPLOYERS WHO PROVIDE LACTATION EQUIPMENT AND LOCATIONS FOR EMPLOYEES IN THE WORK PLACE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] NURSING MOTHERS.--

A. An employer shall provide reasonable work schedule flexibility, including scheduling breaks and work patterns, for an employee who needs to express breast milk for her infant child or to nurse her infant child. This will include unpaid break time for up to one hour a day that shall, if possible, run consecutively with any break time already provided to the employee. The employer and employee shall develop a plan that is mutually satisfactory and provides for the least disruption of the operations of the employer.

B. An employer shall make reasonable efforts to provide a safe, private and sanitary room or other location, in close proximity to the work area, other than a toilet stall, with a working electrical outlet where the employee can express her milk in privacy. The employer shall be held harmless if reasonable effort has been made.

C. For the purpose of this section, "employer" means a person or entity that employs one or more employees and includes the state and its political subdivisions.

D. For the purposes of this section, "infant child" means a person zero to one year of age.

Section 2. A new section of the Income Tax Act is enacted to read:

"[NEW MATERIAL] EMPLOYER LACTATION SUPPORT EXPENDITURES--TAX CREDIT.--

A. To encourage support and protection for nursing mothers in the workplace, a taxpayer who files an individual New Mexico income tax return, who is not a dependent of another individual and who provides a lactation location on his business premises in New Mexico, purchases or rents lactation or lactation-related equipment for use on those premises, hires a lactation consultant or otherwise provides lactation-related support services for his employees in New Mexico may claim a credit in an amount equal to the total expenses, net of any reimbursements, for such equipment, services and provision of a lactation space incurred and paid by the taxpayer in the taxable year.

B. If two or more taxpayers claiming a credit pursuant to Subsection A of this section share in the cost of providing a lactation space or lactation or lactation-related equipment or services, each taxpayer shall be allowed a credit in the proportion of the taxpayer's share of the total expenses incurred by all taxpayers for that shared lactation space, equipment and services in the taxable year.

C. A husband and wife who file separate returns for a taxable year in which they could have filed a joint return may each claim only one-half of the credit that would have been allowed on a joint return.

D. The credit provided in Subsection A of this section may only be deducted from the taxpayer's income tax liability for the taxable year in which the expenditures occurred. The credit may not exceed five thousand dollars ($5,000) in any taxable year. If the credit exceeds the taxpayer's income tax liability, the excess may be carried forward for three consecutive years, but in no event shall the annual credit amount exceed five thousand dollars ($5,000) in any taxable year."

Section 3. A new section of the Corporate Income and Franchise Tax Act is enacted to read:

"[NEW MATERIAL] EMPLOYER LACTATION SUPPORT EXPENDITURES--TAX CREDIT.--

A. To encourage support and protection for nursing mothers in the workplace, a taxpayer that provides a lactation location on his business premises in New Mexico, purchases or rents lactation or lactation-related equipment for use on those premises, hires a lactation consultant or otherwise provides lactation-related support services for his employees in New Mexico may clam a credit against the corporate income tax imposed pursuant to the Corporate Income and Franchise Tax Act in an amount equal to the total expenses, net of any reimbursements, for such equipment, services and provision of a lactation space incurred and paid by the taxpayer in the taxable year.

B. If two or more taxpayers share in the cost of providing a lactation space or lactation or lactation-related equipment or services, each taxpayer shall be allowed a credit in the proportion of the taxpayer's share of the total expenses incurred by all taxpayers for that shared lactation space, equipment and services in the taxable year.

C. The credit provided in Subsection A of this section may only be deducted from the taxpayer's corporate income tax liability for the taxable year in which the expenditures occurred. The credit may not exceed five thousand dollars ($5,000) in any taxable year. If the credit exceeds the taxpayer's corporate income tax liability, the excess may be carried forward for three consecutive years, but in no event shall the annual credit amount exceed five thousand dollars ($5,000) in any taxable year."

Section 4. Section 28-1-7 NMSA 1978 (being Laws 1969, Chapter 196, Section 7, as amended) is amended to read:

"28-1-7. UNLAWFUL DISCRIMINATORY PRACTICE.--It is an unlawful discriminatory practice for:

A. an employer, unless based on a bona fide occupational qualification, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition; provided, however, that 29 U.S.C. Section 631(c)(1) and (2) shall apply to discrimination based on age;

B. a labor organization to exclude an individual or to expel or otherwise discriminate against any of its members or against any employer or employee because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition;

C. any employer, labor organization or joint apprenticeship committee to refuse to admit or employ any individual in any program established to provide an apprenticeship or other training or retraining because of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition;

D. any person, employer, employment agency or labor organization to print or circulate or cause to be printed or circulated any statement, advertisement or publication, to use any form of application for employment or membership or to make any inquiry regarding prospective membership or employment which expresses, directly or indirectly, any limitation, specification or discrimination as to race, age, color, religion, national origin, ancestry, sex, physical or mental handicap or serious medical condition unless based on a bona fide occupational qualification;

E. an employment agency to refuse to list and properly classify for employment or refer an individual for employment in a known available job, for which the individual is otherwise qualified, because of race, age, religion, color, national origin, ancestry, sex or physical or mental handicap or serious medical condition, unless based on a bona fide occupational qualification, or to comply with a request from an employer for referral of applicants for employment if the request indicates either directly or indirectly that the employer discriminates in employment on the basis of race, age, religion, color, national origin, ancestry, sex, physical or mental handicap or serious medical condition unless based on a bona fide occupational qualification;

F. any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any individual because of race, age, religion, color, national origin, ancestry, sex or physical or mental handicap, provided that the physical or mental handicap is unrelated to an individual's ability to acquire or rent and maintain particular real property or housing accommodation;

G. any person to:

(1) refuse to sell, rent, assign, lease or sublease or offer for sale, rental, lease, assignment or sublease any housing accommodation or real property to any individual or to refuse to negotiate for the sale, rental, lease, assignment or sublease of any housing accommodation or real property to any individual because of race, age, religion, color, national origin, ancestry, sex or physical or mental handicap, provided that the physical or mental handicap is unrelated to an individual's ability to acquire or rent and maintain particular real property or housing accommodation;

(2) discriminate against any individual in the terms, conditions or privileges of the sale, rental, assignment, lease or sublease of any housing accommodation or real property or in the provision of facilities or services in connection therewith because of the race, age, religion, color, national origin, ancestry, sex or physical or mental handicap, provided that the physical or mental handicap is unrelated to an individual's ability to acquire or rent and maintain particular real property or housing accommodation; or

(3) print, circulate, display or mail or cause to be printed, circulated, displayed or mailed any statement, advertisement, publication or sign or use any form of application for the purchase, rental, lease, assignment or sublease of any housing accommodation or real property or to make any record or inquiry regarding the prospective purchase, rental, lease, assignment or sublease of any housing accommodation or real property which expresses any preference, limitation or discrimination as to race, age, religion, color, national origin, ancestry, sex or physical or mental handicap, provided that the physical or mental handicap is unrelated to an individual's ability to acquire or rent and maintain particular real property or housing accommodation;

H. any person to whom application is made either for financial assistance for the acquisition, construction, rehabilitation, repair or maintenance of any housing accommodation or real property or for any type of consumer credit, including financial assistance for the acquisition of any consumer good as defined by Section 55-9-109 NMSA 1978, to:

(1) consider the race, age, religion, color, national origin, ancestry, sex or physical or mental handicap of any individual in the granting, withholding, extending, modifying or renewing or in the fixing of the rates, terms, conditions or provisions of any financial assistance or in the extension of services in connection with the request for financial assistance; or

(2) use any form of application for financial assistance or to make any record or inquiry in connection with applications for financial assistance which expresses, directly or indirectly, any limitation, specification or discrimination as to race, age, religion, color, national origin, ancestry, sex or physical or mental handicap;

I. any person or employer to:

(1) aid, abet, incite, compel or coerce the doing of any unlawful discriminatory practice or to attempt to do so;

(2) engage in any form of threats, reprisal or discrimination against any person who has opposed any unlawful discriminatory practice or has filed a complaint, testified or participated in any proceeding under the Human Rights Act; or

(3) willfully obstruct or prevent any person from complying with the provisions of the Human Rights Act or to resist, prevent, impede or interfere with the commission or any of its members, staff or representatives in the performance of their duties under the Human Rights Act; [or] J. any employer to refuse or fail to accommodate to an individual's physical or mental handicap or serious medical condition, unless such accommodation is unreasonable or an undue hardship; or

K. an employer to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation, terms, conditions or privileges of employment against a nursing mother for expressing milk, breastfeeding or other related activities."

Section 5. Section 38-5-11 NMSA 1978 (being Laws 1969, Chapter 222, Section 11, as amended) is amended to read:

"38-5-11. QUALIFYING JURY PANELS.--

A. The court shall empanel jurors in a random manner. The district judge or his designee or the magistrate or his designee shall preside over the empaneling of a petit jury panel. The district judge or his designee shall preside over the empaneling of the grand jury panel. Jurors who appear for service shall be questioned under oath as to their eligibility for jury service by the district judge or his designee or the magistrate or his designee. Claims of exemption, requests for excuse from service or postponement of [services] service shall be ruled upon by the district judge or his designee or the magistrate or his designee.

B. A district judge or his designee or a magistrate or his designee may excuse, exclude or postpone the [services] service of any person called as a juror on the basis of:

(1) physical or mental illness of the person or within his immediate family;

(2) a written request from the person's employer for excuse on the ground that his services are essential; [or]

(3) the person's prior business, professional or educational commitments which conflict with jury service, proven to the satisfaction of the district judge or his designee or the magistrate or his designee; or

(4) a new mother who chooses to breastfeed or express milk for her infant for up to one year following the birth of her child.

C. The district judge or his designee or the magistrate or his designee shall submit questionnaires to prospective jurors to obtain any information that will aid the court in ruling on requests for exemption or excuse from service or postponement of service or that will aid the court or parties in voir dire examination of jurors or in determining a juror's qualifications to serve on a particular petit jury panel, trial jury or grand jury. The district judge or his designee or the magistrate or his designee shall certify a numbered list of the jury panel members' names when qualified. The certified list of jurors and the questionnaires obtained from jurors shall be made available for inspection and copying by any party to any pending proceeding or [their] any party's attorney or to any person having good cause for access to the list and the questionnaires."